TMI Blog2001 (6) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... tter to the Assistant Collector, who in de novo adjudication accepted the claim for classification under Heading 85.40. 2.The manufacturer filed a claim of refund of the duty paid by it in excess in the intervening period. The Assistant Collector found that the refund was to be granted on merits but found that the incidence of duty had been passed on by the manufacturer to the buyer of the goods. He therefore, ordered the amount to be credited to the Consumer Welfare Fund. The manufacturer appealed this order to the Collector (Appeals). The claim before the Collector (Appeals) was that although, initially, the incidence of duty was passed on to the buyer, on a protest by him, the appellant credited the amount of excess duty to his (the bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by the manufacturer was transferred to the buyer when the manufacturer collected from the buyer the amount equal to the tax through the price paid by him for purchasing these goods. By the credit of the manufacturer subsequently to buyer, he took back upon himself that burden or incidence. If, in such a situation, the buyer included the duty element in the price that it charged to another person, it would not be correct to say that it has thereby passed on the incidence of duty to that person. The incidence of a tax cannot be borne by more than one person at the same time. 6.Sub-section (2) of Section 11B provides that if the duty is refundable, the amount so refundable shall be credited to the Consumer Welfare Fund. The proviso und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount to him for one or the other reason, it is just and appropriate that the amount is retained by the State i.e., by the people." This was in fact the basis for the view that a person on whom the burden of duty no longer falls should not be enriched by being refunded the duty. It is only that person who has ultimately borne the burden that could claim the refund. The majority also, in paragraphs 64 and 65, expressed its broad agreement with the judgment of the United States Supreme Court in United States v. Jefferson Electric Manufacturing Co., (78 L. Ed. 859). In that judgment the Court refused to accept that the provisions of Section 424 of the Revenue Act, 1928. This Section provides : "No refund shall be made of any amount paid by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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